Millions of Americans spent this summer trying to beat the scorching heat at the beach. Next month, the Supreme Court justices will also do some wading of their own: through the ocean of petitions for review that have accumulated over the last few months at the court’s annual long conference.
One of those pending petitions—a case involving police power, the Fifth Amendment, and a Los Angeles print shop—warrants a deep dive from the court. At issue is a particularly troubling vision of law enforcement’s role in American society by the Ninth Circuit Court of Appeals. Without the court’s intervention, it could have corrosive implications for American policing and its place in everyday life.
Pena v. City of Los Angeles began with the pursuit of an armed fugitive by law-enforcement officials in southern California in 2022. At one point, Carlos Pena heard noise outside his print shop. “He opened his door to investigate, and saw a man running towards him, pursued by United States Marshals with weapons drawn,” his lawyers told the justices in their petition for review. “The fugitive struck Pena on the shoulder, threw him out of the shop, and barricaded himself inside.”
During the ensuing standoff, the Marshals called for backup from the Los Angeles Police Department, which sent its SWAT team to take control of the scene. The SWAT team eventually used heavy amounts of tear gas and pepper spray in an attempt to force the fugitive out of the building. Thirteen hours later, after conducting a thorough search of the building and its attic, officers concluded that the fugitive had either “escaped or was ‘gone on arrival,’” according to a lower-court ruling, which appears to be a polite way to say that the LAPD may have spent half of a day gassing an empty building.
While both the fugitive and the police soon moved on, Pena did not. The consequences for the small business he had operated for thirteen years were immense. To access the building, officers had damaged the “walls, doors, roof, and windows” at multiple points, either to gain entry or deploy gas. The chemical munitions took their own toll. “In addition, the tear gas and pepper spray permeated the entire shop, which [Pena] claims caused additional damage to his shop, his printing equipment, and his inventory, and rendered his shop uninhabitable until [he] had it cleaned by a hazardous materials team,” the lower court recounted.
After the unexpected siege, Pena sought to rebuild his livelihood. He told the courts that his insurance company (unsurprisingly) refused to compensate him for the destruction inflicted upon his business. The police officers who caused the damage were “under the impression that the city would compensate Pena” when he spoke to them, he told the justices, but city officials “categorically refused to pay for the damage.”
In 2023, Pena sued the city in federal court, arguing that the intentional destruction of his property violated the Fifth Amendment’s Takings Clause. That clause states that “private property [shall not] be taken for public use, without just compensation.” This language is most familiar to Americans in the context of eminent domain: When the government wants to build a railroad or highway through someone’s farm, it has to provide fair compensation for the value of the property that it seizes to do so.
Pena argued that the clause’s language applied to him as well. Government officials, he contended, intentionally inflicted $60,000 worth of property damage while carrying out their official duties, then declined to compensate him for it. According to court filings, city attorneys not only didn’t deny that the city was responsible for the damage, but they never even responded to his initial requests for compensation before he filed his lawsuit.
Two separate courts ruled against Pena for different reasons. First, Judge John Walter rejected his claim in the district court by reasoning that the LAPD’s actions “constituted a valid use of police power” and therefore “did not constitute a taking for purposes of the Fifth Amendment.” The Supreme Court has not directly ruled on whether a state’s police power is exempt from the Takings Clause, but some of its rulings lean that way.
In 1996, for example, the court ruled against a Detroit woman whose car was seized by the city after police found her husband “engaged in sexual activity with a prostitute” inside the car, which the couple jointly owned. William Rehnquist, the chief justice at the time, noted that the wife had made a Takings Clause claim, but dispensed with it by blithely noting that the city had “lawfully acquired” it through forfeiture.
Walter’s opinion ably cited precedents from other courts that rejected similar Fifth Amendment claims after people’s homes and livelihoods were destroyed in the course of police actions. One of them, from the Fifth Circuit, involved a family whose home was partially destroyed by SWAT team bulldozers after a gunman took refuge in their garage with a hostage. There, the city declined to compensate the family for the inadvertent loss of their home, and the courts held that the Constitution provided them no recourse.
The Ninth Circuit Court of Appeals did not embrace Walter’s reasoning. The three-judge panel observed that the district court had gone too far by assuming that there was a categorical exception to the Takings Clause in this context. “We hold only that no taking occurs for the purposes of the Takings Clause when law enforcement officers destroy private property while acting reasonably in the necessary defense of public safety,” Judge Mark Bennett wrote for the panel majority.
From there, however, Bennett engaged in a history-and-tradition examination of the Takings Clause. It led him to a different rationale by which Pena’s claim could be denied. “In addition to the common law right to enter private property, the common law has long recognized a ‘necessity’ privilege for the destruction of private property,” Bennett explained.
This necessity defense has a long and well-established pedigree in some contexts. In 1788, the Pennsylvania Supreme Court rejected a claim for compensation by a man named Sparhawk who lost 227 barrels of flour after patriot forces had removed them from a warehouse in 1777 as British forces approached Philadelphia, then lost them to the British anyway when they captured the barrels at the depot where they were moved. The court had denied Sparhawk’s claims, ruling that they were justified by wartime necessity.
“It is a rule, however, that it is better to suffer a private mischief, than a public inconvenience; and the rights of necessity, form a part of our law,” Chief Justice Thomas McKean, an influential founding-era statesman, wrote in his decision. That principle made its way into American constitutional law even after the Fifth Amendment’s ratification. The Supreme Court later invoked it to deny claims in cases where the military destroyed private property to prevent it from falling into enemy hands, including Southern railroads during the Civil War and petroleum refineries in the Philippines during World War II.
Bennett applied the same reasoning to civilian law-enforcement practices without hesitation. “We find Sparhawk particularly persuasive given that, as discussed further below, the Supreme Court has repeatedly cited Sparhawk for the principle that the government’s destruction of private property in wartime does not warrant just compensation,” the panel noted in a footnote. Though Pena’s shop was obviously not destroyed in the context of wartime, the panel concluded that the rules applied in the context of “governmental takings in the context of defending public safety.”
This is a deeply flawed view of the police power and law enforcement’s role in American society. Our constitutional order has always recognized a sharp and essential divide between civilian and military power, with the latter subordinated to the former at all times. Treating civilian law-enforcement officials as constitutionally equivalent to soldiers in an armed conflict logically places our free society under a permanent state of war—and radically reshapes the relationship between ordinary citizens and the police. It transmutes 330 million Americans into an occupied people subject to the arbitrary whims of whatever armed power determines to be a “necessity.”
Other members of the court recognized the problems with this reasoning. Judge Michelle Friedland wrote a separate opinion where she concurred only in the court’s judgment. She argued that Pena’s claim failed because it all within the search-and-arrest exception to the Fourth Amendment, which he would transpose to the Takings Clause. Friedland criticized the majority for expanding Sparhawk beyond the context it was written and the limits McKean himself had acknowledged.
The court in Sparhawk emphasized, however: “The transaction, it must be remembered, happened flagrante bello [during a state of war]; and many things are lawful in that season, which would not be permitted in a time of peace. The seizure of the property in question, can, indeed, only be justified under this distinction.” Sparhawk thus expressly relied on the fact that the country was in a state of war, and the government’s uncompensated seizure of private property was justified only by its need to protect the property from enemy forces.
That rationale, even on Bennett’s terms, cannot be fairly applied to the facts at hand in Pena’s case. Had British forces captured Sparhawk’s flour in Philadelphia, they might have used it to prolong the war against the early republic. The LAPD, by comparison, did not flood Pena’s print shop with chemical munitions because SWAT team members feared that the fugitive might produce obscene literature or reprint copyrighted texts without authorization. There was no direct “necessity” in destroying the print shop; it was merely how the LAPD chose to go about carrying their duties.
It is worth noting that Pena’s lawsuit is not hostile to law enforcement. He conceded that the LAPD SWAT team’s actions were “reasonable” and even acknowledged that, per court filings, “the public good required the destruction of his shop.” Similar cases cited by the district court had involved challenges where the plaintiffs had also alleged excessive force or other constitutional violations. Pena, on the other hand, did not even list the LAPD as a defendant. He simply argued that the city should compensate him for what they had to do.
A friend-of-the-court brief filed by Thomas Tiderington, a longtime police chief in Dallas, Jacksonville, and elsewhere, turned the policy justification for the necessity exception on his head. He argued that it would be more harmful for future police operations if officers had to consider the fate of innocent people’s livelihoods and property when making their decisions. “Officers have not asked for, do not expect, and are not motivated by this constitutional carveout” of the Takings Clause, he argued.
“Asking officers to execute raids or pursue fugitives knowing that their innocent neighbors or loved ones will foot the bill places an unfair burden on officers’ already heavy shoulders,” Tiderington told the court. “It asks officers to harm the people they are charged to protect—to act against the very mission of policing.” He emphasized that police officers “are not a separate caste,” and should not be asked to consider bankrupting their neighbors and friends as part of their job.
The Supreme Court may be interested in this case for its implications on the scope of the Takings Clause, which the conservative justices have expanded in some contexts in recent years. The lower courts are divided on when and how it applies in these situations, further justifying their intervention. More than anything else, Pena’s case warrants the court’s review because of the profound misapplication of wartime necessity exceptions to ordinary law-enforcement operations. Extending the wartime legal exceptions of military forces to more than 18,000 police departments around the country in everyday life is a mistake worth correcting by the Supreme Court.
